Almost the entire chain of the American legal system is submerged in some controversy. Up front are law enforcement, the police, whose tactics have been the subject of protests since the murder of George Floyd, a black man, in Minnesota last May. At the back end of the system, the Supreme Court is on the verge of a lasting slide to the right, towards the angst of liberal America. Between the two is the Department of Justice, which Donald Trump’s administration has often politicized for its own purposes.
It is in this context that Mr. Trump will announce his impending appointment to the High Court. Whether he chooses Amy Coney Barrett, Barbara Lagoa or another from his conservative shortlist, confidence in American justice in large parts of the country is precarious. In a chilling scenario, the new judge has just ruled on a contested presidential election after election day in November. The president has previously refused to engage in a peaceful transfer of power in the event of defeat to Joe Biden.
Mr. Trump will ignore the concerns of his political enemies in making his choice. But the Senate does not have to make it easy for him. Given the stakes, this appointment requires special consideration by the upper house.
One of the basics of resistance is timing. In 2016, Senate Majority Leader Mitch McConnell blocked Barack Obama’s candidate because, in an election year, with an incumbent president, the winner should have a choice. This invented rule was absurd. But the injustice would be compounded if, four years later, much closer to an election, the same man sent a Republican candidate. Among the party’s senators, at least a few (a potentially decisive number, given their slim majority) are known to have doubts about a pre-election vote. If they do assert themselves, Mr. McConnell – who on Thursday ostensibly promised an “orderly transition” – may still favor the postponement. It still has until January before a new Senate takes its seats.
Yet dwelling on the process risks missing the big picture. It is on the merits that the Senate should ultimately reject Mr. Trump’s candidate. Classically, the chamber questions the jurisprudence of the hopes, their “paper trail” of lower court decisions, their instincts on corner issues like abortion, gun rights and, indeed, the police.
Senators could this time focus on the judge’s attitude towards the executive branch in general and this president in particular. What is at stake is the capacity of the new tribunal to force a sometimes rogue administration. There was some of this during Brett Kavanaugh’s confirmation hearings two years ago, but he was understandably overwhelmed by the sexual assault allegations against him. This time it should be the dominant theme. That Mr. Trump himself is associating the new justice with a post-election showdown over who rules is worrying.
No questioning will engage its candidate once installed, of course. The life mandate frees judges from previous statements or external pressure. But if the hearings reveal any signs of undue deference to executive power, it could make some difference to what promises to be a close vote. And the United States will know what it is for.
If Mr. Trump gets his third Supreme Court judge, he may lose the election and continue to run as president with far-reaching consequences, shaping the law for a generation to come. All of this is within his rights. But the Senate must not forget its own rights. The old convention of waving to any qualified candidate is long gone. Obstructionism has often been cynical and partisan in nature. This time, there is a valid reason for it.